Why No Steps For Delimitation In Nagaland & Arunachal Despite President Rescinding Deferment In 2020? Supreme Court Asks ECI

The Supreme Court today (November 18) asked the Election Commission about the steps taken to carry out the delimitation exercise in the Northeastern states, particularly Arunachal Pradesh and Nagaland,  after a Presidential order of 2020 rescinded the deferment of their delimitation. 

The bench of Chief Justice of India Sanjiv Khanna and Justice Sanjay Kumar was hearing a petition seeking delimitation in four north-eastern states of India, namely, Manipur, Assam, Nagaland, and Arunachal Pradesh. 

Section 8A of the Representation of the People Act, 1950 provides for delimitation of parliamentary and assembly Constituencies in the States of Arunachal Pradesh, Assam, Manipur or Nagaland.

It states that if the President is satisfied that the conditions prevailing in the aforementioned States are conducive for the conduct of the delimitation exercise, the President may rescind the deferment order issued under the provisions of Section 10A of the Delimitation Act, 2002 in relation to that State, and provide for the conduct of delimitation exercise in the State by the Election Commission. After such deferment order, the ECI can carry out delimitation in the State .

Notably, S.10A of the 2002 Act allows the President to order a deferment of the delimitation exercise if s/he " is satisfied that a situation has arisen whereby the unity and integrity of India is threatened or there is a serious threat to the peace and public order" 

Today, during the hearing Advocate G Gangmei appearing for the petitioners informed the Court that the President in 2020 by an order has rescinded the deferment of delimitation in the 4 states. That means, as per the 2020 Presidential order, the exercise of delimitation can be carried out in the said states. 

"We filed the Writ Petition after two years of the order, 2 years have passed, why isn't the delimitation taking place? that is the issue" He added

Gangmei stressed that as per the Counter of the Election Commission of India (ECI), it is contended that the rescinding order of the President would not lead to an automatic conduct of the delimitation as a default and specific orders to the ECI would be imperative to begin the exercise. 

The bench was informed that so far, only in Assam, the exercise of delimitation has been done, as per an order passed in August 2023.

Senior Advocate Maninder Singh appearing for the ECI clarified that in the instance of Assam, the Ministry of Law and Justice made a provision for the process of delimitation specific to Assam, which was then carried out by the ECI. He explained that the exercise of delimitation is assigned to the Delimitation Commission, but for the 4 states in question, due to the operation of S.8A, only when the government decides, the ECI can conduct the exercise

Justice Kumar, however, interjected:  "Where does the Government come in? Once the President rescinds the notification, that is enough." 

CJI weighed in to add that while the purpose of S.8A was to stall the exercise of delimitation in regions that have security concerns, now that the 4 states have been declassified, delimitation would become mandatory

"The fact that 8A was incorporated was to save you from the situation where you do not want to because of disturbed conditions, do not undertake the delimitation....but that is declassified....you have to undertake the exercise" 

However, Additional Solicitor General KM Natraj appearing for the Union contended that in light of the fresh outbreak of violence in Manipur, the situation there does not seem conducive for the exercise. While in the other 3 states consultations are ongoing.

"Situation in Manipur might not be conducive, but for other states consultation is going" 

The ASG added that reports are awaited on the ground situation of the states.

Justice Kumarm referring to S.8A(3), noted that the provision provides for the delimitation to take place immediately by the ECI after the rescinding order

" As soon as it is rescinded - you have to set the ball rolling, what have you done?"

The bench emphasized that it would be incorrect to club all the states together in assessing the conduciveness as nothing adverse seemed to happen in Nagaland or Arunachal Pradesh. 

The ASG however reverted, "the entire Northeastern states are so sensitive, we do not want to aggravate the situation at present." 

The CJI then asked the ASG to take adequate instructions on the course of action ahead considering that the statutory mandate for delimitation need to be complied with now that the President has rescinded the deferment. 

"Take instructions on this, the exercise has to be done. Because that cannot be done- it is a statutory mandate and therefore you have to comply with it. if you don't have 8A r- notified then you are in difficulty"  

The bench will now hear the matter in January 2025.

Notably, a bench comprising former Chief Justice of India DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra has issued notice in writ petition challenging Section 8A of the Representation of Peoples Act. The petition is now pending adjudication. 

Background

The petition refers to the President's order dated February 28, 2020, that allowed for conducting delimitation exercises in the 4 NE states. It further contends that although the Government of India by a notification issued on March 6, 2020, had constituted a Delimitation Commission for the purpose of delimitation of Assembly and Parliamentary Constituencies in the UT of Jammu and Kashmir and the States of Assam, Arunachal Pradesh, Manipur, and Nagaland along with appointing retired Justice Ranjana Prakash Desai as the Chairperson, but exercise was only restricted to Jammu and Kashmir.

Relying on the order, the petition argues that the petitioner(s) had submitted a memorandum to the Prime Minister of India for the implementation of the Delimitation Act, 2002 in these four states in 2021 and 2022 but has not received any response. It has been stated in the plea that selectively denying delimitation while the same exercise was being conducted in the rest of India violated the fundamental right under Article 14 of the Constitution.

The petition further states that–

"It has been already two decades since the Delimitation Act, 2002 was amended and no delimitation exercises have been conducted in the four North-eastern states of Arunachal Pradesh, Assam, Manipur and Nagaland nor under Section 8A of the Representation of Peoples Act in the name of law-and-order problems. However, since 2002 it is to be noted that various parliamentary and state assembly elections have been conducted successfully in these four North Eastern states without any issue of law-and-order problems. In all fairness these four North- eastern states of Arunachal Pradesh, Assam, Manipur and Nagaland deserved equal treatment per-se with rest of India and delimitation exercise ought be conducted at the earliest either by constituting a commission under the Delimitation Act, 2002 or through the Election Commission under Section 8A of Representation of Peoples Act as there are no justifiable reason that exist for not conducting delimitation."

The petition has been drafted by Advocate Gaichangpou Gangmei.

Case Title: Delimitation Demand Committee for the State of Arunachal Pradesh, Assam, Manipur & Nagaland in North East India v Union of India| Diary No 12880 of 2022